Chapter 2 The criminal investigation process

1. Chapter 2The criminal investigation process

2. In this chapter, you will look at the role of police and the courts in the criminal investigation process. You will consider police powers, reporting crime, and investigating crime. You will also look at the laws of arrest, detention and charge, followed by the concepts of summons, bail and remand.

3. Police powers • Police are responsible for ensuring the community abides by the law, and for investigating breaches when they occur. • In the criminal process, police are required to investigate crimes and gather evidence, if necessary make arrests or detain suspects, and to bring the evidence against an offender to court to be tried (usually via a prosecutor).

4. Police powers • In NSW, police powers are mainly found in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). The main powers include: • question and detain suspects search and seizure • use reasonable force if necessary • use particular technologies • arrest and interrogate suspects • recommend whether bail should be granted.

5. Reporting crime • Reporting crimes is an essential part of the criminal process – police need to be aware a crime has been, or might be, committed in order to investigate it. • It is usually ordinary people who will report a suspected crime.

6. Reporting crime • However, for many different reasons, people are often reluctant, unable or unwilling to report crimes. • Some crimes are more widely reported than others. Courtesy of Crime Stoppers Australia/International

7. Investigating crime • Police will need to make a decision on whether to investigate a crime based on a number of factors, such as likelihood of success, available resources and priorities, or the severity of the offence. • If proceeded with, police can use a number of methods and special powers to further their investigation.

8. Gathering evidence • Police will need to gather enough evidence to support a charge against the accused in court. • Evidence could include witness testimony, physical evidence like objects or weapons, or other videos, documents, fingerprints or DNA evidence.

9. Strict rules apply to admissibility of evidence in court, and extreme care is needed to ensure any evidence found is not compromised or interfered with. Gathering evidence

10. Use of technology • Technological advances have been useful in the criminal investigation process. • Technology has improved methods of data, video and audio surveillance, as well as data processing techniques.

11. Use of technology • However, evidenced gathered through technology must be sufficiently reliable if it is to be used in court. • One recent issue has been the reliability of DNA evidence, where over-reliance on the evidence by police or the jury has in some cases led to wrongful convictions.

12. Search and seizure • Police have special powers to search people, property and premises, and to seize and detain objects in particular circumstances. • In NSW, police can stop and search a person without a warrant if they ‘believe on reasonable grounds’ that the person is carrying something prohibited, stolen or used in commission of an offence. • Powers of search and seizure differ depending on the situation, e.g. when searching private premises, a school, a person already in custody or conducting a strip search.

13. Use of warrants • A warrant is a legal document issued by a judge or magistrate that authorises a police officer to perform a certain act. • Police will sometimes require a warrant before they can use their special powers – e.g. NSW police usually require a search warrant before they can search a private premises, or before they can use a wiretap. • Police will need to show sufficient evidence or reasons to a judge or magistrate before a warrant can be issued.

14. Arrest, detention and charge • The law is a set of rules imposed on all members of the community. • Laws are officially recognised, they are binding on all people and they can be enforced in the courts.

15. Arrest • Proper procedures must be followed by police when arresting or detaining a person. • In NSW, police can only arrest a person if they: • have a valid warrant for the arrest • catch a suspect committing an offence • believe on reasonable grounds the person has committed or is about to commit an offence • the person has committed a serious indictable offence for which they have not yet been tried.

16. Arrest • For an arrest to be legal, police must state to the person that they are under arrest and the reason why. • Police can use reasonable force to arrest a person if required.

17. Detention and interrogation • In NSW, police can only detain a person for up to four hours without charging them or releasing them. • The time period does not include certain rest periods, and if necessary police can extend the period with a valid court warrant. • Police must issue a person with a caution once they are detained and before they are interrogated. • The caution informs the person of their right to silence and the maximum period of detention.

18. Release or charge • Before the end of the detention period, police must either charge the suspect with an offence or release them unconditionally. • If charged and kept in custody, the accused must be brought before a court as soon as practicable for a bail hearing.

19. Summons, bail or remand • A summons will be issued to a person charged with an offence. • It is a legal document that states when and where a person must appear in court. • If the accused fails to appear, the magistrate may enter a default judgment of guilty; the person may also be arrested or charged with contempt of court. • A summons will also be sent to witnesses required to attend court to give testimony.

20. Summons, bail or remand • Police may request that the accused remains in custody until and during trial. • Whether the accused remains in custody is determined by a magistrate during a bailhearing. • If bail is granted, the accused can be released awaiting trial, often with conditions attached (like lodgment of money, curfew or monitoring requirements). • If bail is denied, the accused will be detained on remand until trial, in a remand centre similar to a prison.